O'Neill v. Antique World Mall - the Idaho Industrial Commission!

BEFORE THE INDUSTRIAL COMMISSION OF THE STATE OF IDAHO
PATRICIA O’NEILL, )
)
Claimant, ) IC 2002-504617
)
v. ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
ANTIQUE WORLD MALL, ) AND RECOMMENDATION
)
Employer, )
)
and )
)
STATE INSURANCE FUND, ) Filed October 21, 2008
)
Surety, )
)
Defendants. )
______________________________________ )
INTRODUCTION
Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the aboveentitled
matter to Referee Alan Taylor, who conducted a hearing in Boise on April 22 and 25, 2008.
Claimant, Patricia O’Neill, was represented by Richard Owen of Nampa and participated
telephonically. Defendant Employer, Antique World Mall, and Defendant Surety, State Insurance
Fund, were represented by Gardner Skinner of Boise. The parties presented oral and documentary
evidence. This matter was then continued for the taking of post-hearing depositions, and the
submission of briefs, and came under advisement on July 15, 2008.
ISSUES
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 1

The issues to be resolved are:
1. Whether Claimant is entitled to additional medical benefits; and
2. Whether Claimant is entitled to attorney fees for Defendants’ denial of additional
medical benefits.
ARGUMENTS OF THE PARTIES
Claimant asserts her entitlement to additional medical benefits for refills of an intrathecal
morphine pump and additional prescription medications for pain and depression after November 30,
2005, as reasonable and necessary treatment for her industrial back injury. She also asserts her
entitlement to attorney fees for Defendants’ unreasonable denial of payment of these medical
benefits.
Defendants assert that the additional medical benefits Claimant seeks are not required or
reasonable treatment related to her industrial accident.
EVIDENCE CONSIDERED
The record in this matter consists of the following:
1. The testimony of Claimant and Robert Ritchie taken at hearing;
2. Claimant’s Exhibits 1 through 7 admitted at hearing;
3. Defendants Employer and Surety’s Exhibits 1 through 10 admitted at hearing;
4. Deposition of James Morland, M.D., taken by Claimant on May 6, 2008;
5. Deposition of Robert Friedman, M.D., taken by Defendants on May 27, 2008; and
6. The Modified Lump Sum Agreement entered into by the parties in this matter and
approved by the Commission on November 30, 2005, of which the Referee takes
judicial notice as requested by the parties.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 2

The objections posed during the depositions of Dr. Morland and Dr. Friedman are overruled.
After having considered the above evidence, and the arguments of the parties, the Referee submits
the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Claimant was born in 1944 and was 64 years old at the time of the hearing.
2. On January 19, 2002, Claimant injured her low back while lifting a heavily loaded
tray at work. She was treated initially by Timothy Johans, M.D., who referred her to Christian
Zimmerman, M.D. Dr. Zimmerman diagnosed an L2-3 disc herniation with nerve root compression
and L4-5 spondylolisthesis. On May 6, 2002, Dr. Zimmerman performed L2-3 laminectomy, L2-3
microdiskectomy, L4-5 laminectomy, L4-5 facetectomy, L4-5 foraminotomy and L4-5 fusion.
Claimant’s back condition improved for a time and then worsened. Dr. Zimmerman referred
Claimant to William Binegar, M.D., and Robert Calhoun, Ph.D. Claimant was later treated by
C. Timothy Floyd, M.D., who diagnosed recurrent L2-3 disc herniation.
3. On September 24, 2002, Dr. Floyd performed revision L2-3 laminotomy, revision L2-
3 microdiskectomy, and revision L4-5 fusion. Claimant’s back pain persisted and Dr. Floyd referred
Claimant to James Bates, M.D. Claimant later returned to Dr. Johans. On May 13, 2003, Dr. Johans
performed repeat L2-3 hemilaminotomy, L2-3 facetectomy, and L2-3 diskectomy. Claimant’s back
pain improved and then worsened, and on September 10, 2003, Dr. Floyd performed repeat L2-3
laminectomy, repeat L2-3 diskectomy, L2-3 fusion and L3-4 fusion. Claimant’s back pain persisted
4. In March 2004, Claimant participated in the Idaho Elks Rehabilitation Hospital
LifeFit Program where she was supervised by program director Robert Friedman, M.D. Upon
completing the program, Dr. Friedman found Claimant was at maximum medical improvement and
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 3

ated her permanent impairment at 26% of the whole person due to her industrial accident. During
her participation in the four week LifeFit program, Claimant was weaned off of prescription
narcotics and her activity level increased approximately 50%. However, her back pain doubled, and
her functionality following completion of the program decreased substantially due to her increased
pain.
5. Claimant returned to Dr. Bates who referred her to James Morland, M.D. Dr.
Morland recommended a trial of a spinal cord stimulator. Defendants denied authorization for the
stimulator trial. On August 24, 2004, Dr. Morland performed placement of a trial spinal cord
stimulator. The stimulator was not effective. Dr. Morland then recommended trial of an intrathecal
morphine pump. Dr. Friedman opined Claimant was not an appropriate candidate for a pump and
Defendants denied authorization for the pump. On October 26, 2004, Dr. Morland performed
placement of a trial morphine pump. The pump was helpful in controlling Claimant’s pain. On
December 15, 2004, Dr. Morland performed placement of a permanent intrathecal morphine pump.
Defendants denied all benefits related to the morphine pump; however, Defendants paid over
$175,000 in other medical expenses.
6. On November 30, 2005, the parties entered into a Modified Lump Sum Agreement
which was approved by the Commission. The agreement constituted a full and final settlement of
any and all claims resulting from the industrial accident “except as to reasonable future medical
benefits which are compensable pursuant to the provisions of Idaho Code Section 72-432, arising out
of the accident ….” Modified Lump Sum Agreement, p. 5.
7. In December 2005, Claimant moved to Thailand where she continued to reside at the
time of hearing.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 4

8. Claimant’s intrathecal morphine pump requires periodic maintenance including
refilling. Claimant received medical treatment for her back from Therdpoing Dumrongkiate, M.D.,
at the Bangkok Hospital on January 1, 2006, May 1, 2006, August 22, 2006, January 1, 2007, March
28, 2007, April 18, 2007, and September 11, 2007. Claimant’s morphine pump was refilled on
November 3, 2006, and March 5, 2007, in the Bangkok Hospital under the care and direction of
neurosurgeon Dittapong Boonampol, M.D.
9. In May 2007, Claimant began treating with Chomchai Vichitrananda-Kleosakul,
M.D., at Bumrungrad International Hospital in Thailand. Dr. Chomchai refilled Claimant’s
morphine pump on January 7, 2007, June 1, 2007, and September 13, 2007. In addition to the
morphine pump, Dr. Chomchai has prescribed several medications for break through pain control
and other medications to control Claimant’s reactive depression caused by her chronic pain. These
medications include Pariet, Durogesic patches, Paracentamol with Codiene, Zoloft, Seroquel,
Nortrilen, Revotril and Lioresal.
10. Claimant and Robert Ritchie testified that Claimant is taking more medication now
than when she completed the LifeFit program, but that she is significantly more functional since the
installation of the morphine pump. Prior to installation of the pump, Claimant was often confined to
bed. Claimant is now able to walk 30 to 60 minutes at a time, shop, drive, and tend a small garden.
She was unable to tolerate this level of activity prior to installation of the pump.
11. Having conversed with Claimant and carefully compared her testimony with all of the
other evidence, the Referee finds that Claimant is a credible witness.
DISCUSSION AND FURTHER FINDINGS
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 5

12. The provisions of the Workers’ Compensation Law are to be liberally construed in
favor of the employee. Haldiman v. American Fine Foods, 117 Idaho 955, 793 P.2d 187 (1990).
The humane purposes which it serves leave no room for narrow, technical construction. Ogden v.
Thompson, 128 Idaho 87, 910 P.2d 759 (1996).
13. Medical care. The first issue is Claimant’s entitlement to additional medical care
after November 30, 2005. Idaho Code § 72-432(1) mandates that an employer shall provide for an
injured employee such reasonable medical, surgical or other attendance or treatment, nurse and
hospital services, medicines, crutches, and apparatus, as may be reasonably required by the
employee's physician or needed immediately after an injury or manifestation of an occupational
disease, and for a reasonable time thereafter. If the employer fails to provide the same, the injured
employee may do so at the expense of the employer. Idaho Code § 72-432(1) obligates an employer
to provide treatment if the employee’s physician requires the treatment and if the treatment is
reasonable. Sprague v. Caldwell Transportation, Inc., 116 Idaho 720, 779 P.2d 395 (1989).
14. Intrathecal pump. Claimant herein received medical treatment, including installation
of an intrathecal pump by Dr. Morland. Defendants argue that because Dr. Morland testified that
“treatment of pain is pretty much always an elective situation” Morland Deposition, p. 48, Ll. 14-
15, the intrathecal pump was not required, pursuant to Sprague, and thus Defendants bear no
responsibility for the costs of refilling or maintaining the pump.
follows:
15. A closer review of Dr. Morland’s testimony clarifies his perspective. He testified as
Q (by Defendants’ counsel) Did you believe that implantation of the pump
was required for her treatment, or was it an elective situation?
A Treatment of pain is pretty much always an elective situation. There is no
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 6

known—for example, if someone is in severe pain, that is not necessarily a lifethreatening
illness. It’s—so it’s different than, say, somebody having a heart attack
where if you don’t perform a procedure they’re likely going to die. Pain procedures
are performed to relieve pain and improve quality of life, so I can’t view that as a
medical emergency.
Morland Deposition, p. 48, Ll. 11-22. From the above it is clear that Dr. Morland considered a
required procedure as one medically essential to preserve life. He categorized pain control
procedures as elective because they were not essential to preserve life.
16. While the Court in Sprague examined whether “the treatment was required by the
claimant’s physician,” the specific treatment at issue in Sprague consisted of some 47 chiropractic
treatments. Sprague, 116 Idaho 723, 779 P.2d 398. There was no assertion that these chiropractic
treatments were essential to preserve life, however the Court accepted the characterization of them
as “required.” Thus for purposes of Sprague and Idaho Code § 72-432, a medically elective
procedure may be deemed required by the treating physician although not essential to preserve life.
Dr. Morland’s recommendation of the intrathecal pump, as Claimant’s then treating physician, is
sufficient, even though he recognized it as an elective procedure not essential to preserve life.
17. Defendants also assert, based upon Dr. Friedman’s opinion in 2004 which he
reaffirmed in 2008, that the intrathecal pump is not a reasonable treatment for Claimant. As noted,
Claimant’s physician, Dr. Morland recommended, encouraged and instituted this treatment. He
explained that the intrathecal pump delivers medication predominantly to the spinal cord where the
receptors most involved in pain transmission are thought to be. The intrathecal pump has fewer side
effects such as mental confusion and constipation as compared to the use of oral medications.
Dr. Morland noted that Claimant’s condition was improved by the intrathecal pump. He also
testified that the refills and level of medication delivered through the intrathecal pump as calibrated
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 7

y Dr. Chomchai would be considered standard care in the United States.
18. The clear weight of the evidence establishes that the intrathecal pump has
significantly improved Claimant’s functionality and quality of life. The Referee finds this treatment
reasonable.
19. Other pain medications. Defendants assert Claimant’s use of other medications for
break through pain control is unreasonable. Dr. Chomchai has prescribed, and Claimant has utilized,
oral and other pain medications for break through pain control. Dr. Morland testified that in a
minority of cases he prescribes oral medications for control of break through pain for his patients
having an intrathecal morphine pump. Dr. Morland further testified that the prescription
medications Claimant was taking at the time of the hearing when considered collectively were fairly
similar to the amount of medication Claimant took in November 2005. The record establishes that
these additional pain medications have aided Claimant’s functionality and the Referee finds that
these are reasonable.
20. Anti-depressant medications. Defendants argue that Claimant’s depression and
continued use of prescription anti-depressants are related to pre-existing factors and not her
industrial accident.
21. The record reveals that Claimant has an extensive history of depression which preexisted
her industrial accident and for which she received a great deal of counseling and medication.
Although Dr. Friedman’s opinion regarding the ongoing cause of Claimant’s depression has not
always been clear, it appears that since Claimant’s completion of the LifeFit program, Dr. Friedman
believes her ongoing depression is due to pre-existing factors rather than her industrial accident.
Dr. McClay’s opinion is similar. However, neither has examined Claimant since prior to 2005. In
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 8

contrast, Dr. Chomchai, who currently treats Claimant regularly, indicated in her letter of February
12, 2008, that Claimant’s need for anti-depressants is due to her reactive depression “caused by
chronic pain from failed back surgery.” Claimant’s Exhibit 3, p. 2.
injury.
22. The Referee finds that Claimant’s ongoing depression is related to her industrial
23. Defendants are responsible for payment of medical benefits after November 30, 2005,
relating to and including refills and maintenance of Claimant’s intrathecal pump and other
prescription pain control and anti-depressant medications.
24. Attorney fees. Attorney fees are not granted to a claimant as a matter of right under
the Idaho Workers' Compensation Law, but may be recovered only under the circumstances set forth
in Idaho Code § 72-804 which provides:
Attorney's fees - Punitive costs in certain cases. - If the commission or any court
before whom any proceedings are brought under this law determines that the
employer or his surety contested a claim for compensation made by an injured
employee or dependent of a deceased employee without reasonable ground, or that
an employer or his surety neglected or refused within a reasonable time after receipt
of a written claim for compensation to pay to the injured employee or his dependents
the compensation provided by law, or without reasonable grounds discontinued
payment of compensation as provided by law justly due and owing to the employee
or his dependents, the employer shall pay reasonable attorney fees in addition to the
compensation provided by this law. In all such cases the fees of attorneys employed
by injured employees or their dependents shall be fixed by the commission.
25. The decision that grounds exist for awarding attorney fees to a claimant is a factual
determination which rests with the Commission. Troutner v. Traffic Control Company, 97 Idaho
525, 528, 547 P.2d 1130, 1133 (1976).
26. Claimant herein asserts entitlement to attorney fees for Defendants’ denial of medical
benefits including intrathecal pump refills and related hospitalization, and prescription medications.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 9

27. There is conflicting expert opinion regarding the medical benefits sought by
Claimant. Drs. Morland and Chomchai opined these medical treatments are reasonable and
necessary while Dr. Friedman testified they are not. Although Dr. Friedman’s opinion is not
persuasive, Defendants reasonably relied thereon and their denial of additional medical benefits was
not unreasonable.
CONCLUSIONS OF LAW
1. Claimant has proven she is entitled to additional medical benefits after November 30,
2005, including treatment relating to refills and maintenance of her intrathecal pump and
medications prescribed for break-through pain and depression.
2. Claimant has not proven her entitlement to attorney fees for Defendants’ denial of
medical care.
RECOMMENDATION
The Referee recommends that the Commission adopt the foregoing Findings of Fact and
Conclusions of Law as its own, and issue an appropriate final order.
DATED this 15thday of October, 2008.
INDUSTRIAL COMMISSION
__/s/__________________________________
Alan Reed Taylor, Referee
ATTEST:
__/s/____________________________
Assistant Commission Secretary
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION - 10

BEFORE THE INDUSTRIAL COMMISSION OF THE STATE OF IDAHO
PATRICIA O’NEILL, )
)
Claimant, )
) IC 2002-504617
v. )
)
ANTIQUE WORLD MALL, )
) ORDER
Employer, )
)
and )
)
STATE INSURANCE FUND, )
) Filed October 21, 2008
Surety, )
)
Defendants. )
____________________________________)
ORDER - 1
Pursuant to Idaho Code § 72-717, Referee Alan Taylor submitted the record in the
above-entitled matter, together with his recommended findings of fact and conclusions of law to
the members of the Idaho Industrial Commission for their review. Each of the undersigned
Commissioners has reviewed the record and the recommendations of the Referee. The
Commission concurs with these recommendations. Therefore, the Commission approves,
confirms, and adopts the Referee’s proposed findings of fact and conclusions of law as its own.
Based upon the foregoing reasons, IT IS HEREBY ORDERED that:
1. Claimant has proven she is entitled to additional medical benefits after November
30, 2005, including treatment relating to refills and maintenance of her intrathecal pump and
medications prescribed for break-through pain and depression.
2. Claimant has not proven her entitlement to attorney fees for Defendants’ denial of
medical care.

3. Pursuant to Idaho Code § 72-718, this decision is final and conclusive as to all
matters adjudicated.
DATED this 21st day of October, 2008.
INDUSTRIAL COMMISSION
_/s/_________________________________
James F. Kile, Chairman
_/s/_________________________________
R.D. Maynard, Commissioner
ATTEST:
_/s/_________________________________
Thomas E. Limbaugh, Commissioner
_/s/____________________________
Assistant Commission Secretary
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of October, 2008 a true and correct copy of
Findings, Conclusions, and Order was served by regular United States Mail upon each of the
following:
RICHARD S OWEN
PO BOX 278
NAMPA ID 83653
GARDNER W SKINNER JR
PO BOX 359
BOISE ID 83701
ka
______________________________
ORDER - 2